AGREEMENT OF SALE
THIS AGREEMENT, made and entered into this 14th day of February by and
between AMERICAN RADIO SYSTEMS CORPORATION., a Delaware Corporation and AMERICAN
RADIO SYSTEMS LICENSE CORP., a Delaware Corporation ("License Corp.")
(hereinafter referred to as "Seller") and KlMITRON, INC., a New York Corporation
(hereinafter referrer to as "Buyer").
W I N E S S E T H:
WHEREAS, Seller is the owner of and its wholly owned subsidiary,
License Corp., is licensee of Radio Station WCMF-AM, Rochester, New York,
(hereinafter sometimes referred to as the "Station"); and
WHEREAS, Seller desires to sell and Buyer desires to purchase certain
of the real and personal property and assets, both tangible and intangible, of
the Seller used in the operation of the Station, and to obtain assignments of
the licenses, authorizations and permits issued by the Federal Communications
Commission (hereinafter referred to as the "FCC") for the operation of the
Station and of any other licenses, permits or authorizations issued by any
regulatory agency in connection therewith; and
WHEREAS, the licenses issued by the FCC for the operation of the
Station may not be assigned by the Seller to the Buyer without the prior written
consent of the FCC;
NOW THEREFORE, in consideration of the aforesaid and of the mutual
promises and covenants hereinafter to be mutually kept and performed by the
parties hereto, as well as for other good and valuable consideration, the
parties hereto, intending to be legally bound hereby, do hereby agree as
follows:
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1. ASSETS TO BE CONVEYED.
Subject to the prior approval of the FCC as provided herein, Seller
agrees to sell, assign, transfer, convey and deliver to Buyer and Buyer agrees
to purchase, accept and receive from the Seller on the Closing Date as
hereinafter defined all of Sellers right, title and interest of, in and to the
following listed real property and tangible and intangible personal property and
assets of the Station (Station Assets or Assets):
A. The licenses, authorizations and permits issued by the FCC for the
exclusive use of the Station and used, useful or intended for use in connection
with or related to the Station and the operation thereof, including but not
limited to, those listed on Exhibit "A" attached hereto and made part hereof
free and closer of any and all liens, claims, security interests and/or
encumbrances of any nature or kind whatsoever.
B. The tangible personal property and assets of Station listed on
Exhibit "B" attached hereto and made part hereof, together with any and all
replacements thereof or additions or accessions thereto of similar or like
quality made in the usual and ordinary course of Station's business between the
date hereof and the Closing Date free and clear of any and all liens, claims,
security interests, and/or encumbrances of any nature or kind whatsoever.
C. All that certain real property with the buildings, towers, ground
systems and other improvements thereon erected situate at 0000 Xxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx, comprised of sixty (60) +/- acres, and described in Exhibit
"C" attached hereto and made part hereof, together with all and singular the
rights, appurtenances and easements pertaining thereto including any right,
title and interest of Seller in and to adjacent streets, alleys, or rights of
way, (the Real Property), free and clear of any and all liens, mortgages,
easements, encumbrances, claims, and deeds of trust of any nature or kind
whatsoever except as hereafter provided.
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D. All files, records, logs, and program materials required by the FCC
to be maintained by Seller or on file with the FCC that relate to the operation
of the Station and all other files and records of the Station on the Closing
Date relating exclusively to the business and operation of the Station.
E. All other licenses, permits or authorizations issued by any
regulatory agency which are used, useful, or intended for use in the operation
of the Station.
F. Anything not listed above is not part of the sale. Specifically the
assets of Seller being sold do not include (i) cash on hand or in bank and notes
receivable or accounts receivable (billed or unbilled) (ii) the call letters
"WCMF", or (iii) any item or tangible personal property owned by Seller not
listed on Exhibit "B", whether or not any such property is used or useful in the
operation of the Station, which assets are to remain the property of Seller.
Buyer assumes no liability or obligations for Station personnel or employment or
benefits contracts, or any related contracts, obligations or leases with respect
thereto. There are no other contracts, leases or other agreements to be sold,
assigned or purchased hereunder and Buyer assumes no liability for same or for
any debt or obligation of Seller which may have accumulated or accrued on any
contract, leases or agreements which are specifically excluded herein and are
not part of this sale.
2. PURCHASE PRICE.
The purchase price for the sale and settlement of the assets hereunder
payable from Buyer to Seller is the sum of SIX HUNDRED FIFTY THOUSAND
($650,000.00) DOLLARS payable, apportioned and allocated as follows:
A. The purchase price allocation for the Station Assets purchased is in
accordance with Exhibit "D" attached hereto and made a part hereof
B. Buyer shall pay for the above assets in the following manner:
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(1) Upon execution of this Agreement of Sale, $ 32,500.00
an xxxxxxx money deposit of:
(2) Upon filing an assignment application for the
Station with the FCC an additional xxxxxxx
money deposit of: $ 32,500.00
(3) At Closing the balance of: $585,000.00
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TOTAL $650,000.00
C. All payments by Buyer to Seller shall be made either by cash,
certified check, bank check, bank check, cashier's check, or by wire transfer of
immediately available funds.
D. All xxxxxxx money deposits shall be held in a federally insured
interest bearing escrow account titled in the names of Seller and Buyer at Union
National Bank & Trust Co., Souderton, PA, which xxxxxxx money deposits shall be
retained in escrow until Closing hereunder or termination of this Agreement as
provided herein.
(1) In the event of Closing under this Agreement all interest
earned shall be returned to Buyer and all principal shall be paid to Seller.
(2) In the event of a permitted termination of this Agreement
by the Buyer or the Seller (except due to a material breach of this Agreement by
Buyer) as provided herein then the xxxxxxx money deposited with all accrued
interest shall be returned to the Buyer and this Agreement shall then be
declared null and void and neither party shall have any further liability to or
action against the other party hereto except as may be hereinafter provided.
(3) In the event of a material breach of this Agreement by the
Buyer then the xxxxxxx money deposited plus accrued interest shall be paid to
the Seller as liquidated damages but only if Seller has not materially breached
this Agreement, and this Agreement shall then be declared null and void and
Seller shall have no further claim or action against the Buyer.
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In the event of a material breach of this Agreement by the Seller, Buyer shall
at Buyer's option have the right to specific performance in addition to any
other available legal and/or equitable remedies.
3. SELLERS REPRESENTATIONS, COVENANTS AND WARRANTIES.
Seller warrants, covenants and represents to Buyer that now and on the
Closing Date hereunder:
A. Seller or License Corp. is and will be the holder of the
authorizations, licenses and permits issued by the FCC and any other regulatory
agency, if any, for the operation of Station and the same are in full force and
effect and unimpaired by any acts or omissions of Seller, or Sellers employees
or agents or for any other reason.
B. The tower, transmitting and Studio equipment and all other tangible
personal property included as a Station Asset shall be in good operating
condition and shall permit the Station to operate in accordance with the
licenses and permits and the rules and regulations of the FCC. The transmission
facilities of Station, including but not limited to, studios, transmitters,
antennae, control systems, and any and all other such assets normal and
essential to broadcasting, and included in the Station assets are in material
compliance with all applicable licenses, specifications, requirements, rules and
regulations of the FCC, FAA, and any other governmental regulatory agency which
holds authority over the operation of the Station.
C. There will be no more than normal wear and tear of the Station
Assets and any replacements thereof and additions or accessions thereto, being
sold hereunder and used, useful of intended for use in connection with or
related to the Station and the operation thereof. All the aforesaid, and the
Tower site and the use thereof as a radio station, are permitted by and in
material conformity with all applicable building, zoning, Wetlands, or other
laws, ordinances, rules and/or regulations and Seller has not received any
notices of violations of same.
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D. Seller is and will be at Closing the owner of the Real Property, the
Station Assets and any replacements thereof and additions of accessions thereto
used, use for intended for use in the operation of Station free and clear of any
all liens, claims, security interests, mortgages, deeds of trust, restrictions,
liabilities and encumbrances of any nature or kind whatsoever as hereinbefore
set forth, and shall be lawfully possessed of good, indefeasible and marketable
title thereto.
E. Seller is and will be at Closing fully empowered and authorized
under all applicable laws to execute, perform, deliver and carry out this
agreement according to its terms. Seller is a corporation duly organized,
validly existing and in good standing in the State of Delaware and is duly
qualified to conduct business in the State of New York.
F. Subject to the approval of the Department of Justice pursuant to the
Final Judgment filed January 31, 1997 in United States of America and the State
of New York v. American Radio Systems Corporation. the Lincoln Group, L.P. and
Great Lakes Wireless Talking Machine LLC; United States District Court for the
District of Columbia, No. 96 2459 (the "Final Judgment"), the execution and
performance of this Agreement shall and does not connect with or cause a breach
of any other Agreement, understanding, commitment or arrangement to which the
Seller is a party. G. All information and documents provided or to be provided
to Buyer by Seller and upon which Buyer has relied is/are substantially true and
correct. H. No consent or approval of any third party other than the FCC and the
Department of Justice under the Final Judgment is required before Seller can
perform as required hereunder. I. Upon consummation of the transaction
contemplated herein, the continued operation of the Station by Buyer, in the
same manner as now operated by Seller, will not violate
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any laws, ordinances, rules, regulations or order which are in effect at the
time of Closing and Seller has not violated same.
J. Seller knows of no patent, latent or invisible defects in any of the
property to be sold and transferred hereunder.
K. No proceedings are pending or threatened which may result in the
revocation, modification, non-renewal, or suspension of any licenses,
authorizations or permits issued by the FCC or others necessary for the
operation of the Station.
L. Seller shall maintain adequate and sufficient public liability and
fire and property damage insurance on all property and assets being sold and
transferred hereunder in full force and effect until Closing.
M. It is understood and agreed by the parties hereto that Buyer will
hire new employees to operate the Station commencing on the Closing Date and,
therefore, Buyer assumes no obligations whatsoever for current Station
employees. No union or other collective bargaining unit represents the employees
of Seller at the Station and there are no employment contracts or any other
agreements or understandings as to employment at Station with such employees and
there are no agreements of any nature which extend beyond thirty (30) days.
Buyer assumes no obligations or liabilities under any such agreements. When the
FCC grants its full and final consent to the assignment to the licenses,
authorizations and permits of the Station, as hereinafter defined, Seller shall
give all employees of Station notice of termination of employment unless Seller
intends to continue employing such person in other operations owned by Seller.
N. Notwithstanding any other provision of this Agreement, Buyer shall
not assume any responsibility or liability for any Pension, Welfare, Health,
Accident, Life Insurance or other benefit plans for Station's employees, funded
or unfunded, if any such exist.
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O. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Seller and this Agreement is a valid and
binding obligation of Seller.
P. To the best or Seller's knowledge, it has duly and timely filed all
required federal, state and local tax returns and paid all taxes, interest and
penalties due relating to Sellers interest in the assets being transferred, its
employees, or its operation of the Station, or has sought and obtained
extensions of time to file such and pay same within the time provided therefor.
Between the date hereof and the Closing Date, Seller shall exercise its best
efforts to duly and timely file all such required return and pay all such taxes,
interest and penalties, or to obtain such extensions within the time provided
therefor. Seller shall indemnify, defend, save and hold harmless Buyer from and
against all claims, obligations and liabilities for all taxes, interest and
penalties attributable lo Sellers business, employees, and/or ownership or
operation of the Station and the assets being transferred.
Q. The environmental condition of the Real Properly and the buildings
and improvements thereon erected and being sold hereunder as to "hazardous
and/or Toxic Waste or Substances" or "Pollutants" (including without limitation,
Hydrocarbons, PCB's, Petroleum and the like) as such terms or similar terms are
defined under the laws, rules, regulations or ordinances of the United States,
any State, and/or any local governmental authority is as stated in the Phase I
Environmental Site Assessment ("Assessment") dated November 27, 1996 prepared by
Xxxxxxx Associates, P.C., a copy of which is attached hereto as Exhibit "E". To
the best of Sellers knowledge there has been no change in such condition since
the date of said Assessment.
R. As to the Real Property, and/or the buildings and Improvements
thereon are being sold hereunder Seller has not received any notice, summons,
citation, directive, letter or other communication, written or oral, from the
United States, any State Environmental Protection
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Agencies or similar such agencies or anyone else concerning any intentional or
unintentional action or omission on Sellers or any prior owner's or present or
prior occupants part which resulted in the releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing or the like of such "Hazardous and/or Toxic Waste
or Substances" or "Pollutants" into the waters, into the air, or onto the land
which may or may not have resulted in damage to the lands, waters, fish,
shellfish, wildlife, air and/or other resources owned, managed, held in trust or
otherwise controlled by the United States, any State, Seller, or others.
S. Title to the Station Assets shall be as set forth in this Agreement.
T. The Sellers portion of the assignment application to be filed with
the FCC as of tile date of said filing shall be in a form acceptable for filing
under the FCC rules and sufficient for the FCC's consent as hereafter defined.
U. There is access to the Real Property by right of ingress and egress,
by easement, directly from a public or private road, or otherwise.
V. The Station shall continue to be operated as an ongoing business the
same as it is presently being operated.
W. The Real Property being sold and conveyed hereunder is all of the
real property owned by Seller at the location where the Station is situated and
there is no other real property and the Real Property hereunder is not a
subdivision of and/or from a larger tract of land.
X. To the best of Sellers knowledge, the structural components of all
buildings and/or other improvements are sound and the mechanical systems are in
good operating condition.
Seller's warranties, covenants and representations shall survive the
Closing Date.
4. BUYER'S REPRESENTATIONS, COVENANTS AND WARRANTIES.
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Buyer warrants, covenants and represents to Seller that now and on the
Closing Date:
A. Buyer knows of no reason why the FCC or any other regulatory
commission would not approve an application for the assignment of licenses,
permits and/or authorizations to Buyer.
B. Buyer has all the necessary powers to execute, deliver and perform
this Agreement and to consummate the transaction provided for herein and to take
such other steps as are necessary for the performance of this Agreement and the
execution, delivery or performance of this Agreement by Buyer will not conflict
with or constitute a default under any other agreement or commitment that is
binding upon Buyer.
C. Buyer at time of Closing and thereafter will be financially
qualified to undertake the performance of the obligations set forth herein and
to meet the FCC's financial qualifications requirements for this transaction.
D. The Buyer's portion of the assignment application to be filed with
the FCC as of the date of said filing shall be in a form acceptable for filing
under the FCC rules and sufficient for the FCC's consent as hereafter defined.
E. Buyer is duly organized, validly existing and in good standing in
all jurisdictions wherein Buyer is incorporated or conducts business, and is, or
shall be at Closing qualified to conduct business in the State of New York.
Buyer's warranties, covenants and representations shall survive the
Closing Date.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
The obligations of Buyer to consummate this Agreement are subject to
and conditioned and contingent upon the satisfaction on or prior to the Closing
Date of each of the following conditions by Seller:
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A. All representations, covenants and warranties of Seller contained in
this Agreement shall be true and correct and in all material respects as of the
date when made and as of the Closing Date.
B. At the Closing Seller shall deliver or cause to be delivered to
Buyer all Closing documents required to be delivered by Seller and all assets,
real, personal, fixed, tangible and intangible to be sold hereunder.
C. All the terms, covenants and conditions to be complied with or
performed by Seller on or before the Closing Date shall have been duly complied
with and performed and all other contingencies herein shall have been met.
D. On the Closing Date Seller will be the owner and holder of all
licenses, authorizations and permits covering the Station to the extent that
same can be owned or held by Station under the Communications Act of 1934 as
amended and same shall be in full force and effect.
E. The FCC shall have granted its full and final consent to the
assignment of licenses, permits and authorizations as contemplated herein and
all other third party consents shall have been obtained, if required.
F. Seller shall have afforded counsel, accountants, engineers, and
other representatives of the Buyer free access during normal business hours upon
reasonable notice to Seller's buildings, offices, studios, equipment,
agreements, records, files and books of accounts, furnish Buyer with all
information, including all tax information, concerning Seller' affairs as Buyer
may reasonably request, so far as such access, information, and materials
pertain to the operation of, assets of, and authorizations pertaining solely to
the Station being conveyed pursuant to this Agreement, and give Buyer a power of
attorney if requested and not otherwise made available by Seller, so that it may
examine all instruments, documents, reports,
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applications, responses or information, confidential or otherwise, filed with
the FCC for the Station under the FCC's rules, or otherwise, by the Seller; and
permit Buyer's representatives to make extracts from and on request furnish to
Buyer a copy of any and all of Seller's books or accounts, records and files and
the like, so far as they pertain to the Station.
G. There shall not be any proceeding threatened or pending to enjoin
the Closing and there shall not be any judgment or order that would prevent or
make unlawful the Closing.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.
The obligations of Seller to consummate this Agreement are subject to
and conditioned and contingent upon the satisfaction on or prior to the Closing
Date of each of the following conditions by Buyer.
A. The representations, covenants and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects as of the date
when made and as of the Closing Date.
B. All of the terms, covenants and conditions to be complied with or
performed by Buyer on or before the Closing Date shall have been duly complied
with and performed and all other contingencies herein shall have been met.
C. Buyer shall deliver to Seller on the Closing Date all Closing
documents required to be delivered by Buyer pursuant to this Agreement.
D. The FCC shall have granted its full and final consent to the
assignment of the licenses, permits and authorizations contemplated herein.
E. Payment of the purchase price by Buyer.
F. There shall not be any proceeding threatened or pending to enjoin
the Closing and there shall not be any judgment or order that would prevent or
make unlawful the Closing.
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G. The Buyer shall have received a copy of a change of call sign notice
from the FCC effective no later than five (5) days following the Closing Date.
7. TITLE TO THE REAL PROPERTY AND COSTS.
The Real Property shall be conveyed free and clear of any and all
liens, mortgages, deeds of trust, claims, encumbrances and easements of any
nature or kind whatsoever, excepting however the following:
Existing building restrictions, ordinances, easements of record and of
roads, privileges or rights of public service companies, if any, otherwise the
title to the aforesaid described Real Property shall be good and marketable and
such as will be insured by a reputable title insurance company at the regular
rates. In the event Seller is unable to give a good and marketable title and
such as will be insured by a reputable title insurance company, subject as
aforesaid, Buyer shall have the option of taking such title as the Seller can
give with an abatement of the purchase price or of being repaid all deposit
monies with accrued interest paid by Buyer. In the latter event there shall be
no further liability or obligation on either of the parties hereto and this
Agreement shall become null and void.
The Seller shall obtain and pay for the cost of the following with
respect to all Station Assets to be sold hereunder:
(1) Fees for a title insurance from a title insurance
company chosen by Buyer and/or fees for cancellation
of same:
(2) State and local UCC search;
(3) Any survey or surveys that may be required by the
title insurance company, or the abstracting attorney.
8. INDEMNITY BY SELLER
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A. Seller hereby agrees to indemnify, defend, save and hold Buyer
harmless with respect to any and all claims, losses, obligations, liabilities,
costs and expenses, including reasonable counsel fees and/or litigation costs,
threatened, suffered, incurred or sustained by Buyer by reason of any material
misrepresentation by Seller, or any material breach by Seller of this Agreement
or of any of Seller's warranties, covenants or representations contained in this
Agreement, or arising from or by reason of Seller's ownership or operation of
the Station prior to the Closing Date hereunder, or out of any material breach
by Seller of any agreements which might be assigned to Buyer hereunder because
of events occurring prior to the Closing Date hereunder. This Subparagraph 7A
shall survive the Closing.
B. In the event Seller breached or breaches any of the warranties,
covenants or representations to "Hazardous and/or Toxic Waste or Substances", or
"Pollutants" set forth in Paragraph 3 Q and R, then such indemnification,
defense and hold harmless provision from Seller to Buyer set forth in
Subparagraph 7A above shall also include without limitation any and all fines,
damages, penalties, and interest thereon; clean-up, removal, remedial response
or oversight costs; contributions to any Superfund and the like; all liabilities
or natural resource damages, or costs, or settlements amounts of any nature or
kind and the cost of complying with any consent decree under federal, state or
local law, rule, regulation, order or ordinance; the diminution in value of the
Real Property and the cost of replacement equipment and lost business resulting
from the Station going silent to correct the situation; and legal, accounting,
consulting, engineering and other costs related to the aforesaid which are
threatened, suffered, incurred or sustained by Buyer. If such breach should
occur before Closing Buyer shall have the option of requiring Seller to
immediately remedy the breach at Seller's sole cost prior to Closing or, of
escrowing sufficient funds from the Purchase Price to pay for the cost of any of
the above, or of declaring this Agreement null and void and in the latter event
all deposit money with accrued
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interest shall be returned to the Buyer and neither party shall have any further
obligation or liability to the other. This Subparagraph 7B shall survive
Closing.
9. INDEMNITY BY BUYER.
A. Buyer hereby agrees to indemnify, defend, save and hold Seller
harmless with respect to any claims, losses, obligations, liabilities, costs and
expenses, including reasonable counsel fees, threatened, suffered, incurred or
sustained by Seller by reason of any material misrepresentation by Buyer, or any
material breach by Buyer of this Agreement or of any of Buyer's warranties,
covenants or representations contained in this Agreement, or arising from or by
reason of Buyer's ownership or operation of the Station subsequent to the
Closing Date hereunder. This paragraph 9A shall survive Closing.
10. RISK OF LOSS AND ASSESSMENTS.
The risk of loss or damage to any of the Assets to be transferred
hereunder shall be upon Seller at all times prior to the Closing Date. In the
event of such loss or damage, the proceeds of, or any claim for any loss payable
under, any insurance policy with respect thereto, shall go to the Seller and be
used to repair, replace or restore such lost or damaged assets. In the event
such loss or damage prevents the broadcast transmission by the Station in the
normal and usual manner, Seller shall give prompt written notice to the Buyer.
If Seller cannot restore the facilities so that normal and usual transmission
can be resumed before the Closing Date then the Closing Date shall be postponed
and the exact date and time of such postponed Closing shall be designated by the
Buyer upon five (5) days written notice to the Seller. In the event the
facilities cannot be restored within the effective period of the FCC's consent
then the parties shall join in an application or applications requesting the FCC
to extend the effective period of its consent for a period not to exceed 90
days. If the facilities have not been restored by the Closing Date or any
postponement thereof to a date within the effective period of the FCC's consent
then the
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Buyer shall have the option to terminate this Agreement without any further
obligation hereunder of either party and the deposit money with interest shall
be refunded to the Buyer and this Agreement shall be declared Null and Void.
Seller shall be responsible for any notice of improvements or
assessments respecting the real property received on or before the Closing Date.
Buyer shall be responsible for any such notice of improvements or assessments
received after the Closing Date if Buyer Closes hereunder.
11. PRESERVATION OF BOOKS AND RECORDS.
For a period of five (5) years after the Closing Date Seller shall
preserve and maintain the books and records not delivered to Buyer and Buyer
similarly shall preserve the books and records of Seller delivered to Buyer and
each party shall make such books and records available to the other party at all
reasonable times and permit the other party to make extracts from or copies of
all such records. 12. INSPECTION BY BUYER.
During the period from the date hereof to the Closing Date Buyer shall
have access during normal business hours and upon reasonable notice to the
Station's offices, studios, transmitter site and equipment, contracts, logs,
records and files and Seller shall furnish Buyer with all information concerning
the Stations' Assets and operations as Buyer may reasonably request. 13.
PRORATIONS AND ADJUSTMENT TO PURCHASE PRICE.
At the Closing, all Real Property and tangible and intangible personal
property taxes and assessments, rent, water, sewer and other utility charges, if
any, and any other lienable municipal services, if any, advertising rebates, and
any other prepaid items respecting the Assets to be sold hereunder, shall be
apportioned and allocated between the Buyer and the Seller as of the Closing
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Date, on the basis of the period of time to which such items or liabilities
apply. To the extent such items are not determinable at Closing, a final
settlement on such prorations shall be held, if possible, within thirty (30)
days after the Closing Date and an escrow account shall be established with
sufficient estimated funds from the Purchase Price to pay for Seller's portion
of such items once the amount due is determined and Seller shall pay any excess
for same if the escrow account is not sufficient.
If the Closing occurs before the tax rate is fixed for the then current
term, the apportionment of taxes at Closing shall be upon the basis of the tax
rate for the preceding year applied to the latest assessed valuation, provided,
however, that any and all rollback taxes, if any, shall be paid for by Seller.
It is understood and agreed that all transfer, sales, use, or other taxes, or
assessments or documentary stamps imposed by any governmental body or others on
the sale and/or transfer of the Assets herein, if any, shall be paid one-half
(1/2) by Buyer.
14. INSTRUMENTS OF CONVEYANCE AND TRANSFER - CLOSING DOCUMENTS.
A. At the Closing, Seller shall execute and deliver to Buyer the
following Closing documents to transfer and convey title to all Station Assets
being sold hereunder:
(1) Xxxx of sale, assignments of licenses, a warranty deed,
and a bulk sales affidavit in the forms attached hereto, all required consents,
and any other instruments or documents regarding the transfer of any and all
other assets which may reasonably be required in order to transfer, convey, sell
and assign all of the Assets herein.
(2) All records, logs, books and accounts, public files and
other data relating to the operation of the Station which Buyer may reasonably
request or which may be otherwise required by the terms of this Agreement.
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(3) Seller shall execute such other documents and do and
perform such other acts as Buyer shall reasonably request in order to place
Buyer in actual possession and operating control of the Station and all of the
Assets, and to consummate the transaction herein.
B. At the Closing, Buyer shall pay to Seller the purchase price as
aforesaid.
15. APPLICATION FOR COMMISSION APPROVAL.
Within fifteen (15) business days from the date of the first deposit of
xxxxxxx money Buyer and License Corp. shall join in applications to be filed
with the FCC requesting its written consent to the assignment of the licenses of
Station from Seller to Buyer and Seller and Buyer shall take all necessary steps
to the expeditious prosecution of such application or applications to a
favorable conclusion. Each party shall bear its own expense (including
attorney's fees) in connection with the preparation of the applicable sections
of said application and in connection with the prosecution of said application,
and Buyer and Seller agree to use their best efforts to file and process said
application as diligently as possible. The Commission filing and grant fees, if
any, will be paid one-half by Seller and one-half by Buyer. 16. TIME FOR
COMMISSION CONSENT.
In the event that the FCC does not grant its full and final consent to
the assignment of the licenses, authorizations and permits of the Stations,
within nine (9) months after the application requesting said approval has been
accepted for filing by the FCC, then either the Buyer or the Seller may give
written notice to the other party of the cancellation of this Agreement and upon
said cancellation all parties shall be relieved of all of their obligations and
duties under this Agreement and it shall be declared null land void and all
deposit money with accrued interest shall be returned to the Buyer.
For the purpose of this Agreement, a "full and final consent" shall
mean action by the FCC consenting to the assignments, as aforesaid, which is not
reversed, stayed, enjoined, set
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aside, annulled or suspended, and with respect to which action no timely request
for stay, petition for rehearing, or appeal or reconsideration by the Commission
on its own motion has expired.
17. CLOSING DATE AND PLACE.
The Closing Date under this Agreement shall be within five (5) business
days after the FCC has granted its full and final consent to the assignment of
the license, permits and authorizations. Unless otherwise agreed, Closing herein
shall take place at the time and in a manner mutually agreed to by the parties.
Possession of all of the Assets to be sold hereunder shall be delivered by
Seller to Buyer on the Closing Date. Time is of the essence of this Agreement.
18. CONTROL OF STATION.
This Agreement shall not be consummated until after the FCC has granted
its full and final consent. Until the Closing Date, the Buyer and Buyer's agents
shall not directly or indirectly control or attempt to control the operations of
the Station, but such control shall remain solely with the Seller. After the
Closing Date, the Seller and Seller's agents shall not directly or indirectly
control or attempt to control the operation of the Station, but such control
shall be solely with the Buyer.
19. REAL ESTATE AGENT OR BROKER'S FEES OR COMMISSIONS.
Seller and Buyer mutually represent and warrant the Xxxxxxxxx and
Company, Alexandria, Virginia, its agents and employees, especially Xx. Xxxxx
Xxxxxxx, is the only and exclusive broker in this transaction and its total
commission due as a result of this sale shall be paid for by the Seller herein
at Closing. The parties hereto represent, covenant and warrant to each other
that no other broker, finder, real estate agent or third party has had any part
in bringing about the transactions contemplated herein and that there are no
brokerage
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commissions, Realtor's commissions, finder's fees or claims of compensation due
or payable to any other person in connection with the transactions contemplated
herein. Each of the parties hereto agrees to infeminify, defend, save and hold
harmless the other party hereto from any and all claims, damages or expenses,
including reasonable attorneys fees, sustained, threatened or incurred for any
such brokerage commissions or Realtors commissions or finder's fees or third
parties fees arising from any breach of such warranty, representation and
covenant herein by the indemnifying party. This provision shall survive Closing.
20. ASSIGNMENT OR SALE.
This Agreement shall not be transferred or assigned without the prior
written consent of the parties hereto, however buyer has the absolute right to
assign this Agreement to a corporation or other business entity wholly owned by
Buyer or the present shareholders of Buyer without Seller's consent, provided
such assignment does not cause a delay of the Closing hereunder.
21. BENEFIT.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective parties hereto and their successors and assigns.
22. APPLICABLE LAW.
This Agreement shall be constructed, interpreted, governed and enforced
in accordance with the laws of the State of New York.
23. WAIVER.
No waiver by any party of any breach hereunder or of any term, clause,
condition, or provision of this Agreement shall be deemed a waiver of any other
or subsequent breach, or other term, clause, condition or provision of this
Agreement.
24. OTHER DOCUMENTS.
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The parties hereto shall execute such other documents and shall perform
such other acts as may be necessary and/or required for the implementation and
consummation of this Agreement.
25. AMENDMENT
This Agreement cannot be altered, amended, changed, waived or modified
in any respect or in any particular unless the same shall be in writing and
signed by all of the parties hereto.
26. SEVERABILITY.
If any term, condition, clause or provision of this Agreement shall be
deemed to be void or invalid in law or otherwise then only that term, condition,
clause or provision shall be stricken from this Agreement as is held to be void
or invalid and in all other respects this Agreement shall be valid and in full
force and operation. 27. ENTIRE AGREEMEMT.
This Agreement contains and constitutes the entire agreement and
understanding between the parties hereto regarding the subject matter hereof and
there are no other covenants, conditions, promises, representations,
understandings or agreements either oral or written of any nature or kind
whatsoever other than those herein contained.
28. NOTICES.
Any written notice or other commmunication required or performed by any
provision of this Agreement shall be deemed to have been sufficiently given for
all purposes if personally delivered or sent by first class mail, or by fax or
by overnight delivery to the parties as follows:
Seller: American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxx,
Chief Executive Officer
Fax #: (000) 000-0000
with copy to: Xxxxxxx X. Xxxxxx,
Vice-President and General Counsel
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American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone #: (000) 000-0000
Fax #: (000) 000-0000
Buyer: Kimtron, Inc.
Xxxxxx X. Xxxxxxxx, President
X.X. Xxx 0000
Xxxx Xxxx, XX 00000-0000
Telephone#: 0-000-000-0000
Fax#: 0-000-000-0000
with copy to: Xxxxxx X. Xxxxxxxxx, Esquire
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone#: 0-000-000-0000
Fax#: 0-000-000-0000
29. SUITS.
In any action brought at law and/or in equity in order to enforce the
terms of this Agreement, or such party's rights herein, the successful party
shall be entitled to reimbursement from the other party hereto of all legal
costs and expenses (including attorneys fees) incurred as a result of such
action or actions.
30. GENERAL INTERPRETIVE RULES.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires (1) the terms defined in this Agreement
have the meanings assigned to them in this Agreement and include the plural as
well as the singular and the use of any gender herein shall be deemed to include
the other genders; (2) references hereto to "Paragraphs", "Subparagraphs", and
other subdivisions and to "Exhibits" without reference to a document, are to
Exhibits to this Agreement; (3) reference to a subparagraph without further
reference to a Paragraph is a reference to such subparagraph contained in the
same Paragraph in which the reference appears and this rule shall also apply to
other subdivisions;
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(4) "including" means "including but not limited to"; (5) the words "herein",
"hereof", "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular provision; (6) the words "business day"
shall mean any day other than a Saturday, a Sunday or a day on which commercial
banks in New York City are required or authorized to close; and (7) the headings
herein are included for ease of reference only and shall not control or affect
the meaning or construction of the provisions of this Agreement.
31. COUNTERPARTS.
This Agreement may be executed in counterparts, and all counterparts so
executed shall collectively constitute one agreement, binding on all the parties
hereto, notwithstanding that all the parties may not be signatory to the
original or the same counterpart. Faxed signatures shall constitute original
signatures.
NOW IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement the day and year first above written.
SELLER: American Radio Systems Corporation
Attest: By: /s/Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx, Vice President
------------------------
Secretary
AMERICAN RADIO SYSTEMS
License Corp.
By: /s/Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxx, Vice President
BUYER: Kimtron, Inc.
Attest: By:______________________________________
President
-------------------------
Secretary
